Erasmus School of Law

Julie Ringelheim

From Identity to Inclusion: Social and Economic Rights in a Minority Protection Perspective

This paper seeks to explore the interactions between social and economic rights, on the one hand, and minority protection, on the other. As will be shown, these interactions revolve around two major questions. First, how to protect national or ethnic, religious and linguistic minority groups from direct discrimination in the enjoyment of social and economic rights? Second, how to ensure respect for minority’s cultural identity in the socio-economic field? The first two sections of the paper will examine to what extent these concerns are addressed by present-day international and European human rights law. Part I will highlight the important recent evolution of antidiscrimination law both in European Union law and in the European Court of Human Rights case law. Part II will delve into the relationship between socio-economic rights and respect for cultural identity. Based on the case law of the UN Human Rights Committee, the European Court of Human Rights and the European Committee of Social Rights, it will show that the content of social and economic rights, such as the right to housing or the right to education, may be in part culture-dependent. For instance, in the case of Roma families who continue to live in caravan in accordance with the tradition of their community, their right to housing may be hampered where national authorities do not take into account their specific lifestyle in their housing and planning policies. This second part of the paper will attempt at clarifying where human rights law stands in this regard. The implications of the notions of indirect discrimination and reasonable accommodation will be briefly considered. Finally, the last part of the paper will emphasise the potential tensions between the objective of equal treatment on the one hand and respect for identity on the other. This tension will be illustrated by the issue of the right to education and the dilemma between promoting autonomous minority education, where minority children can be taught their specific culture, and favouring integrated schooling so as to ensure that minority and majority receive an education of equal quality and learn to know each other from an early age. In this relation, the opinions of the Advisory Committee on the Framework Convention for the protection of national minorities will be looked at.

Gabor Kardos

The Right to Identify a Minority from International Legal Point of View

Iefinition applied by state party should be based on objective criteria as in the case of individual’s right to identity secured n its first chapter the paper examines the importance and the true meaning of the classical statement made by the Permanent Court of International Justice: “The existence of communities is a question of fact; it is not a question of law.” Following that line also in that chapter the author identifies and comments the two most important elements of the 5.2. of the General Comment 23 of the UN Human Rights Committee: “it is not relevant to determine the degree of permanence that the term "exist" connotes” in Article 27 of ICCPR, and “(T)he existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.” The author also comments the famous interpretative declaration (reservation) of the Republic of France.: “In the light of article 2 of the Constitution of the French Republic, the French Government declares that article 27 is not applicable so far as the Republic is concerned.”
In its second chapter the paper examines the practice of the two European instruments: the European Charter of the Regional or Minority Languages and the Framework Convention for the Protection of National Minorities. Although in case of the first instrument the question is “the recognition of the regional or minority languages as an expression of cultural wealth” (Article 7 1. a.) that means an indirect recognition of the community. Although Article 5 of the framework convention sheds some light on it there is no definition of a national minority in the Convention, what we know that a dby Article 3 (1). Consequently the state parties should clarify the personal scope of the convention but not in arbitrary or objectively unjustified manner as the Framework Committee emphasised many times. The paper tries to identify interesting individual recognition problems like Prussians in Germany and addresses the recognition and protection of new minorities.
In its third chapter the paper examines the Hungarian constitutional regulation of the recognition of a national minority and examines certain practical issues as the wish to be recognised by an imagined community (Huns) or the delicate problem of the existence of one or two communities (Slovenes and Vends).

1.Permanent Court of International Justice, Advisory Opinion, Greco-Bulgarian “Communities” Ser. B. No.17, p.16
2. UN Human Rights Committee The rights of minorities (Art. 27) : 08/04/94. General Comment 23
3. treaties.un.org/Pages/ViewDetails.aspx

Elizabeth Craig of Sussex

Employment Monitoring and the Framework Convention for the Protection of National Minorities: Emerging Tensions and Challenges

Ten years after the entering into force of the Framework Convention for the Protection of National Minorities, the relationship between the individual right to choose to be treated or not to be treated as belonging to a national minority in Article 3 and the equality and non-discrimination guarantees in Article 4 remains relatively unexplored in the academic literature. The issue of demographic data collection has been addressed on a number of occasions by the Advisory Committee as well as being subject to consideration by the Committee of Experts on Issues relating to the Protection of National Minorities. There are however increasing signs that potential tensions between the two need to be more fully explored, particularly in relation to an issue of particular relevance to socio-economic participation, that of employment monitoring. A particularly vivid illustration of the tension can be found in the heated debates that have taken place in Northern Ireland over the inclusion of a right to self-identification in any future Bill of Rights and the potential implications for existing monitoring processes. Related tensions have emerged in other contexts. For example, the Advisory Committee has noted that the lack of official statistics on ethnicity or language in Germany, linked to the individual right to self-fulfilment under Article 2(1) of the Basic Law, makes it difficult to ensure the promotion of full and effective equality between groups. This contribution aims to provide an overview of the Advisory Committee’s current stance on data collection and to explore whether lessons can be drawn from the controversy that has arisen in Northern Ireland over the relationship between Articles 3 and 4, drawing upon the presenter’s experiences as legal advisor to the Northern Ireland Bill of Rights Forum in 2007/08 as well as semi-structured interviews with relevant actors. The paper will focus in particular on the perceived tensions between individual rights and measures aimed at promoting equality between groups and the role of the Framework Convention in promoting a form of liberal culturalism and the implications for the wider equality agenda. It will also explore the role of domestic and international contextualisation and negotiation in addressing such tensions.

Pap Andras

Murphy’s law on the free choice of identity? Legal and political difficulties in defining membership in minority communities

Consider the following paradox: while sociologists, anthropologists, constitutional scholars, philosophers and policy makers may endlessly dwell on the difficulty of benchmarking or defining membership criteria for minorities, and armoured by powerful data protection guarantees a number of international human rights commitments recognize the free choice of identity (in both the positive and the negative sense), in the real world there are no definitional or identification problems for those who engage in discriminatory behaviour. When it comes to the maltreatment of members of various minority groups, no difficulties in definitions arise for the discriminating party. In fact, sometimes conceptual ambiguities may worsen the protections provided for the victimized group.
The paper and presentation investigates the constitutional dilemma that characterizes all minority protection mechanisms (be they remedial in nature, providing additional rights or preferential treatment, or trying to protect from violence or discrimination): they need to institutionalize some kind of a definition for the targeted groups (as well as membership requirements within the community) despite concerns over data protection or historically embedded moral misgivings. The failure to do so seriously impedes the prospects for efficient legal protection, as shown by the widespread practice of "ethnic cheating" or "ethno-corruption” and the legally embedded reluctance to apply antidiscrimination and hate crime laws in Eastern Europe. The issue highlights the complexity of minority identification, which is manifest in the vastly different approaches law and legal measures need to follow when providing protection from victimization in hate crimes and discrimination on the one hand, and accommodating multicultural (or other) diversity-claims on the other. Although the legislative goal to design a precise set of requirements is common to both approaches, perception will be the crucial concept in the former, while choice and identification in the latter.

Tove Skutnabb Kangas and Ajit Mohanty

MLE as an economic equaliser in India and Nepal: mother tongue based multilingual education fights poverty through capability development and identity support

Our starting point is economics Nobel Prize laureate Amartya Sen's conceptualisation of poverty as “capability deprivation”: “Even the relevance of low incomes, meagre possessions, and other aspects of what are standardly seen as economic poverty relates ultimately to their role in curtailing capabilities (that is, their role in severely restricting the choices people have) … Poverty is, thus, ultimately a matter of ‘capability deprivation’” (Dreze & Sen 1996: 10-11). Thus, “poverty is no longer to be viewed simply in terms of generating economic growth; expansion of human capabilities can be viewed as a more basic objective of development (Misra & Mohanty 2000: 263). Since the loci of poverty, and of intervention, are in Sen's view, economic, social and psychological, and measures have to be taken in each of these areas, the central question in reducing poverty is: “What is the most critical (and cost effective) input to change the conditions of poverty, or rather, to expand human capabilities?” (Misra & Mohanty 2000: 265). There is “a general consensus among the economists, psychologists and other social scientists that education is perhaps the most crucial input” (ibid.). Thus if poverty is understood as “both a set of contextual conditions as well as certain processes which together give rise to typical performance of the poor and the disadvantaged” in school, and if of “all different aspects of such performance, cognitive and intellectual functions have been held in high priority as these happen to be closely associated with upward socio-economic mobility of the poor” (Misra & Mohanty 2000b: 135-136), then we have to look for the type of division of labour between both/all languages in education that guarantees the best possible development of these “cognitive and intellectual functions” which enhance children’s “human capabilities” (Skutnabb-Kangas & Dunbar, in press).

What is done in submersion education of Indigenous/Tribal and Minority/ Minoritized (ITM) children today (meaning subtractive education through the medium of dominant languages which happens at the cost of ITM children learning the mother tongues, rather than additively), is not enhancing but rather curtailing these functions (e.g. Skutnabb-Kangas 1984, 2000, Skutnabb-Kangas & Mohanty 2009, Skutnabb-Kangas and Dunbar, in press). Thus it deprives children of the choices and freedom that are associated with the necessary capabilities. Today’s ITM education represents capability deprivation, including identity deprivation.

In the paper we will look at marginalisation, invisibilisation and deprivation of ITM capabilities, identities, languages and agency through today’s formal education, and report on projects in India, Nepal and elsewhere, which are counteracting these crimes against humanity (see also Skutnabb-Kangas, Phillipson, Mohanty & Panda, eds, 2009). (All references can be found at http://www.tove-skutnabb-kangas.org/en/Tove-Skutnabb-Kangas-Bibliography.html; see also http://www.nmrc-jnu.org/).

Robert Phillipson

English as pandemic?

Hierarchies of language and dialect are ubiquitous. English is currently marketed as a panacea, with the consequence that efforts to strengthen all other languages, identities and cosmologies are at risk, and democratic legitimacy and participation are curbed. Symptomatic of the structural and ideological favouring of English are
its widespread acceptance as a hegemonic language in the EU system, without issues of language rights and linguistic equality being addressed (Phillipson 2003);
making English an obligatory curriculum element ever earlier in schools, as a subject in Europe and in some variants of bilingual education, and as the sole medium of instruction in many parts of Africa, Asia and elsewhere;
the mushrooming of English-medium universities, entire campuses in many postcolonial contexts worldwide, and, in continental European universities with English increasingly as a partner or competitor with well-established national languages;
the assumption that Anglo-American monolingualism and US empire values are ‘globally’ relevant, as they accompany and facilitate corporate and military globalisation, with a reduction of diversity (biological, cultural and linguistic) and of democratic societal participation as a result (Phillipson 2009).

Maria Lundberg and Zhou Yong

Linguistic Minorities in China and socio-economic participation

Dr Prakash Shah

Partners, participants or pariahs?The significance of socio-economic rights for religious minorities in British legal systems

In recent years British legal systems have erected a number of legal protections for religious groups to extend the coverage of previous anti-discrimination laws. Members of religious minority groups have begun to test such legislation in the courts particularly in the contexts of education and employment. This paper explores the ways in which British courts have responded to the claims of such minorities and developed a theoretical explanation for why the courts have reasoned in the ways that they do. In particular, it seeks to explain why British courts have maintained a particular resistance to the claims of Muslims while exhibiting a rather mixed approach to members of other religious minorities. Why do the courts offer such differential and uneven protection to members of different religious minorities? Can we explain their responses on the basis of the reasoning employed by the judges themselves or are explanations to be found elsewhere? What parallels are there if any in the European Court of Human Rights? What do these developments signal for a pluralistic European future? Do the decisions signal that members of religious minorities are treated as full partners in building a socio-economic European future, as mere participants whose presence is tolerated for expedient reasons, or as outcast pariahs whose presence is not welcomed?

Jeroen Temperman

Religious & Non-Religious Minorities, State Neutrality and Access to Public School Education

An analysis of the Interplay between the Neutrality Principle, the Rights of Religious & Non-Religious Minorities, the Right to Adequate Education, Children’s Right to Freedom of Religion or Belief, Parental Liberties & the Position of Teachers.
State duties in the area of education consist of obligations to refrain from interferences but also, importantly, of obligations to proactively guarantee availability and access. Negative state obligations in the present context are clear and hardly disputed: public school education, it goes without saying, should be open to all children regardless of religious affiliation. The state may not interfere with someone’s right to education by barring this person from public school education on account of his or her (parents’) religion. Also, in terms of negative state obligations, the state must respect the right of parents not to avail of the schools established by the public authorities and their right to (establish or) opt for private educational institutions ––i.e. denominational schools–– so as to ensure the religious and moral education of their children in conformity with their own convictions. Turning to positive obligations, if the state is to respect every child’s right to education, it must at the very least make available free primary education to all. Although on the face of a self-evident notion, state practice shows that implementation of this norm leaves a lot to be desired.
It is argued in this paper that the international standards on the right to education imply that the state is under a positive obligation to ensure that sufficient public schools with appropriate curricula are available at all times. A number of states, for different reasons, fail to properly implement this norm. This paper addresses the main failures and objectionable policies that can be discerned in the field of public school education that affect the rights of religious and non-religious minorities, including the following state practice:

• Religious education is made compulsory for children;
  
• The state has ‘contracted out’ the issue of education to religious institutions, thus not actively making available sufficient adequate ––in terms of international obligations–– education;
  
• The state fails to frame a supposedly neutral subject on religion truly in a non-confessional manner;
  
• The state practices defective opt-out policies;
• The state tolerates traditional forms of religious symbolism, affecting the compulsory non-confessional character of state schools; or:
• The state de facto bars access to public school education by virtue of other policies, for instance regulations on dress codes.
  

This paper is intended to assess relevant state practice so as to identify contemporary obstacles to access to adequate public school education with a particular focus on the rights of religious and non-religious minorities. The principal objective of this paper is to formulate recommendations, informed by the emerging notion of state neutrality in public school education, to overcome such obstacles. This paper will, at the same time, scrutinize the rationale and justification of the emerging norm of state neutrality.

Reem Mazzawi

Israel’s discriminatory policies against non-Jews

The excessive emphasis upon the Jewish character of the state of Israel encourages discrimination and accords a second-class status to non-Jewish citizens. Moreover, the Israeli legal system does not enshrine the general principles of equality and non-discrimination. As a result, non-Jewish citizens, such as persons belonging to the Palestinian minority in Israel, are subjected to institutionalised and systematic discrimination with regard to the enjoyment of their economic, social and cultural rights. Israel’s discriminatory polices and practices has resulted in the continuing lower standard of living of the Palestinian minority, including the Bedouin communities, such as higher unemployment rates, restricted access to and participation in trade unions, lack of access to housing, electricity, water and health care and a lower level of education. The situation of the Bedouin communities, especially of those residing in the 40 so-called “unrecognised villages” in the Naqab is of a significant concern.
Israel refuses to recognise the existing Bedouin villages and does not allow these communities to live, control or use their communal land. Instead Israel aims at depopulating these villages and collecting its inhabitants into seven government-planned “townships” - densely and improvised “concentration areas”. What remains from their ancestral lands are then confiscated and allocated to the exclusive use and benefit of the Jewish citizens. By this, Israel is relocating the Bedouins on the pretext of development, without consulting or obtaining the free and informed consent regarding the relocation of the effected population.
As a result, the Bedouin communities in Israel are not only facing imminent threat of forcible displacement, but also a looming threat to their traditional life. Historically, the Bedouin communities have relied on animal husbandry while simultaneously engaging in agricultural activities in years of adequate rainfall. However, the ongoing trend of concentrating these communities on less and less land, will force these communities to abandon their traditional life, and therefore lose their cultural identity.

Lee Swepston

Indigenous peoples and the economy: Always at the bottom of the pile

Indigenous peoples are the greatest losers in the growth of modern economies, and in the globalization which has lifted many from poverty. Review briefly the economic losses they have suffered over more than 500 years of colonization. The main subject of this paper will be that this economic deprivation has not ceased in modern times, and is becoming worse in a situation of globalization. There is continuing g loss of territory, with its consequences of loss of resources, livelihoods and skills. Indigenous peoples’ intellectual knowledge is being taken from them on a daily basis. New drives for mineral exploration and exploitation extend into previously-neglected indigenous territories, as does the thirst for wood and forest products. Indigenous peoples in Arctic and other regions are now suffering also from the consequences of global climate change which results from economic development. Develop with specific examples from a few countries – e.g., Bangladesh where population growth threatens juma culture; and Sweden where there are no internal protections for Sami reindeer herders against expansion of national park and agricultural land.

Felix Ndahinda

Marginality, Disempowerment and Indigenousness in Africa

The heteroclite ethno-cultural composition of the African continent is a documented reality. Also documented is the manner in which imposed colonial boundaries disrupted pre-existing equilibriums and constrained the dynamics of state formation or the still nascent integration process of various identities in many parts of the continent. Consequently, the numerous conflicts in many post-colonial African states are violent expressions of identity-based grievances. Situations vary from one country to another and marginality of particular identities is relative, mostly in those countries with numerous ethno-cultural groups.

Since the end of the 1980s and beginning of the 1990s, a growing number of mainly hunter-gatherer and pastoralist communities have adopted a new form of identification as the indigenous peoples of Africa. Marginalized for centuries or since the colonial encounter, they have liaised with groups from other parts of the world but also with indigenous rights supporters and advocates in claiming special legal protection under the emerging (international) indigenous rights framework.
Aware of the need to avoid oversimplification of complex realities, the present paper explores in general terms the substance of indigenous claims in Africa, against the backdrop of contemporary socio-political realities of the continent and the multifaceted forms of identity claims. The disempowered status of particularly vulnerable and marginalized communities is analysed taking into consideration contextual realities that hamper recognition of particular communities as constitutive of indigenous peoples. The analysis discursively interrogates the meaningfulness of claiming indigenousness in efforts aimed at empowering claimant hunter-gatherer, pastoralist and other communities.

Baogang He

Mixed Responses to Indigenous Rights in Asia

The varied Asian responses to the international call for indigenous rights are examined. International organizations (e.g. UN) and international non-governmental organizations (e.g. International Work Groups for Indigenous Affairs), and several indigenous NGOs (e.g. Asia Indigenous Peoples Pac, Cordillera Peoples Alliance, and Inter Mountain Peoples Education and Culture in Thailand) have launched a series of campaigns for the rights of indigenous peoples in Asia. Indigenous groups are now asserting their claims to ancestral lands in many Asian countries. Some countries have accepted this call but most have rejected it. There are uneven and varied responses to the call for homeland rights. Most Asian States reject claims of indigenous rights because it is believed that such claims imply a sovereign claim to lands, thus posing a threat to development and exploitation of natural assets. Behind most stories of the dispossession and disappearance of indigenous peoples in Asia are situations where lands have been appropriated by developmental states without adequate compensation.

Christian Courtis

Socio-economic rights of indigenous peoples in Latin America

The presentation will look at the developing jurisprudence of Latin American regional and national courts, making use of Convention 169 of the ILO on indigenous peoples. The studied cases involve the collective right to ancestral land, the right to be consulted before decisions that may affect their territories or natural resources, the exercise of cultural rights and the respect of the decisions of the indigenous justice systems.

Korir Singoei

Engaging the Leviathan: National Development and the Endorois’ Quest to Recover their Herding Grounds

The socio-economic position of the Endorois, an indigenous minority group in Kenya’s Rift Valley region, is a function of their pastoralist cultural configuration as it interacts with a state whose developmental imperative is to modernize through markets. The marginal position occupied by pastoralism in the economic matrix of the state, has led the state de-emphasize its utility in favour of economic activities that respond to market demands, in this case, tourism. But in order to achieve this national aspiration, the endorois land must be set aside for this purpose, and the community forcefully evicted. This paper explores the institutional responses to the challenges of the Endorois community in both Kenya and at the regional level, and provides important pointers in how to mediate the tensions between national development and the survival of indigenous groups in Africa.